opinion

Medical liability: Lawsuit chances take a toll

A new report found that 61% of doctors 55 and older have been sued, and AMA leaders say such findings confirm the need for tort reform.

Posted Sept. 6, 2010.

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Our actions are influenced even when the odds are in our favor. So we save receipts (tax audit risk, 1 in 100), change the smoke detector battery (fire-related fatality odds, 1 in 1,235), and think twice about standing in the rain (chance of being struck by lightning, 1 in 6,250).

When it comes to the chances physicians face in terms of being sued, a new AMA report shows they can expect a lawsuit not as matter of possibility, but of probability. More than half -- almost 61% -- of physicians older than 55 report having been sued. The behaviors that result from those odds should come as no surprise -- such as defensive medicine and practice decisions to shield the doctor from risk. And those actions can significantly affect the cost of care and patient access.

The AMA found that overall, 42.2% of the 5,825 surveyed physicians had been sued, with nearly a quarter of them hit with lawsuits twice or more. Obstetrician-gynecologists were among the most likely to be sued, and the measures they have taken as a result are predictable. In a 2009 survey, nearly a third of ob-gyns reported cutting back on high-risk obstetric patients, one of a number of practice restrictions made in light of liability fears.

It's a pattern found in other specialties with a high risk of litigation. A June 1, 2005, Journal of the American Medical Association study found that 42% of 824 surveyed physicians in high-liability specialties restricted their practices, including eliminating procedures prone to complications, such as trauma surgery. They also avoided patients who had complex medical problems or were viewed as litigious.

All told, the AMA lawsuit study found that 95 medical liability claims were filed for every 100 physicians, based on the doctors surveyed.

Yet for all the lawsuits, the AMA noted that the figures should not be taken as an indicator that doctors are making more medical errors. In fact, the Association said physicians prevail 90% of the time when a case goes to trial. Most cases never get that far -- 65% are dropped, dismissed or withdrawn.

But the cost of fighting a claim is high. The average cost to defend a case was $22,163 for suits dropped, dismissed or withdrawn, to more than $100,000 for those that went to court. Add to that the anguish of being sued.

Defensive medicine is a well-studied result of the liability pressure on physicians, and doctors have been frank in surveys about the topic. A nationwide Gallup Poll of 462 physicians released in February found that 73% had practiced defensive medicine, such as ordering additional tests, in the previous year to protect against potential liability. The doctors estimated that 26% of health care costs were related to defensive medicine.

The same month, an online survey by Jackson Healthcare showed that 92% of doctors practiced defensive medicine. The health care management company survey also found that doctors estimated that 34% of health costs were linked to the practice. A study in the June 28 Archives of Internal Medicine reported a similarly high rate of defensive medicine. And 91% of the 1,231 physicians surveyed by the journal agreed that unnecessary diagnostic tests won't end without protection from unwarranted lawsuits.

The AMA has long supported the well-proven tort reform of caps on noneconomic damage awards, most notably in California and Texas. It continues to push for that fundamental reform at the national and state levels. The AMA is keeping a watchful eye on alternative solutions to the medical liability problem. In June, the Dept. of Health and Human Services awarded $25 million in grants to test alternatives such as health courts and early compensation programs. The 20 grants, issued to health systems and states, fund projects that will explore ways to improve physician-patient communication and reduce common medical errors, among other things.

The AMA successfully advocated for funding of the demonstration projects. They are a way of increasing the odds that widespread tort reform will become a reality, and that the health care system can operate without the costly burden of a litigation fear factor.

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External links

"Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians," American Medical Association, August (link)

"Physicians' Views on Defensive Medicine: A National Survey," Archives of Internal Medicine, June 28 (link)

"Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment," Journal of the American Medical Association, June 1, 2005 (link)

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